Wells and Repatriation Commission
[2005] AATA 1297
•23 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1297
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1998/384
VETERANS' APPEALS DIVISION ) Re ALICE SARAH WELLS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date23 December 2005
PlaceBrisbane
Decision The Tribunal affirms the decision to reject the claim for widows pension. .................SIGNED......................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
VETERANS’ AFFAIRS – death from prostate cancer as a result of a diet high in animal fat – not related to service – decision affirmed
Veterans’ Entitlements Act 1986: ss.5C, 6A, 7, 8, 13, 120, 120A, 196B(14)
REASONS FOR DECISION
Deputy President Don Muller 1. Alice Sarah Wells, the Applicant, has claimed a widows’ pension pursuant to section 13(1)(a) of the Veterans’ Entitlements Act 1986 (the VEA).
2. Mrs. Wells claims that her late husband, David William Wells, died from the effects of a war-caused disease, namely prostate cancer.
3. The elements of Mrs. Wells’ claim are:
(a)David William Wells died from the effects of prostate cancer.
(b)For many years prior to his death from prostate cancer, Mr. Wells was in the habit of consuming food which had a high animal fat content.
(c)A diet with a high animal fat content is an accepted cause of prostate cancer.
(d)Mr. Wells’ habit of eating a diet with a high animal fat content arose out of the diet to which he had become accustomed while he served in the Australian Army.
(e)The food that he had become accustomed to eating during his years in the Army was higher in animal fat content than his pre-service diet.
(f)Thus, Mr. Wells’ death from prostate cancer was related to his Army service.
4. Mrs. Wells’ claim has been rejected by the Respondent on the grounds that her late husband’s death was not causally related to his eligible service.
5. The Veterans’ Review Board (VRB) affirmed the Respondent’s decision.
6. Mrs .Wells seeks a review of that decision.
Legislative Framework
7. Pursuant to section 13(1)(a) of the VEA, where the death of a veteran was war-caused, the Commonwealth is, subject to the VEA, liable to pay pensions by way of compensation to the dependants of the veteran in accordance with the VEA.
8. Section 8(1)(b) of the VEA provides that the death of a veteran shall be taken to be war-caused, if the disease contracted by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.
9. Section 7(1)(a) of the VEA provides that a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service.
10. The question of whether a death is war-caused within the meaning of section 8 of the VEA is to be decided by applying the standard of proof prescribed by section 120 of the VEA.
11. Section 120(1) provides that where a claim under Part II for a pension in respect of the death of a veteran relates to the operational service rendered by the veteran, the Commission shall determine that the death was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
12. Section 120(3) provides that the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the death was war-caused if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the person.
13. Section 120A(3) provides that for the purposes of section 120(3), a hypothesis connecting a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force a Statement of Principles (SoP) that upholds the hypothesis.
14. Subsection 196B(14) of the VEA provides that a factor causing or contributing to a death is related to service rendered by a person if it arose out of, or was attributable to, that service.
Necessary Elements of Hypothesis
15. In the context of this review the elements of a hypothesis connecting prostate cancer contracted by the veteran with the circumstances of his war-service (operational service) are as follows:
(a)the veteran’s pre-war service diet contained animal fat of X grams per day on average;
(b)the veteran’s war service diet, provided to him by the Army, contained animal fat of (X + Y) grams per day on average;
(c)the increase in consumption of animal fat of Y grams per day whilst on eligible service was such that it could cause the veteran to increase his consumption of animal fat in his post-war service diet to a level, for a significant number of years, which could cause prostate cancer.
16. If the material placed before the Tribunal does raise a hypothesis containing the above elements, that hypothesis will only be reasonable if the hypothesis is consistent with, or fits the template of the relevant SoP established by the Repatriation Medical Authority.
17. In this case the relevant SoP at the date of this decision is Instrument No. 28 of 2005, “Malignant Neoplasm of the Prostate”. Those parts of No. 28 of 2005 relevant to this review are:
“Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to the relevant service rendered by the person.
Factors
5.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate or death from malignant neoplasm of the prostate with the circumstances of a person’s relevant service is:
….
(c)increasing animal fat consumption by at least 40% and to at least 50gm/day, and maintaining these levels for at least five years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate.
Other definitions
8. For the purposes of this Statement of Principles:
“animal fat” means fat contained in or derived from:
(a)meat, other flesh or offal from animals (including birds but excluding seafood);
(b) dairy products; or
(c) eggs from birds.”
Material Placed Before the Tribunal
18. The following matters are not in dispute and the Tribunal finds:
(a)David William Wells was born at Bendigo, Victoria on 15 January 1924.
(b)He served in the Australian Citizen Military Forces from 25 May 1942 to 8 July 1943 and in the Australian Imperial Force from 9 July 1943 to 27 August 1946.
(c)He served in Darwin, Northern Territory, from 26 February 1943 until 21 May 1945, except for a period of leave between 8 January 1944 and 28 February 1944.
(d)The remainder of his Army service was rendered in southern Australia.
(e)His service in Darwin during the time he was stationed there constitutes “operational service” within the meaning of that term in the VEA, pursuant to section 6A.
(f)He married Alice Sarah Wells on 18 January 1946.
(g)He had the following disabilities accepted by the Repatriation Commission as war caused:
·Psychoneurosis
·Perceptive deafness left ear
·Sinusitis
·Cervical Spondylosis
(h)He was first diagnosed with prostate cancer in August 1985.
(i)He died on 28 November 1986. The cause of death was metastatic carcinoma of prostate.
(j)He was a “veteran” within the meaning of that term in section 5C(1) of the VEA.
19. Mrs. Wells provided a written statement and gave oral evidence. She also provided statements to the expert dieticians about her late husband’s diet. She made the following points (among others):
(a)She really has no idea what her husband ate prior to his enlistment in the Army. She understands that he worked for a farmer. Her husband told her that he was always “starving”.
(b)She grew up in a Victorian country town not far form where her husband grew up, but they did know each other when they lived there.
(c)She believes that her husband’s pre-service diet was probably similar to her own in country Victoria during the Depression years. Her experience was that the family rarely ate meat of any quality. They ate a lot of rabbits. Items such as milk, eggs and bacon were an “absolute luxury which we never got”. Her family survived on home grown vegetables and an occasional piece of chuck steak.
(d)Her husband told her that during his service he ate a lot of bully beef.
(e)She met Mr. Wells in late 1945 and married him on 18 January 1946.
(f)After his discharge from the Army Mr. Wells became a sheet metal worker and then a crane driver.
(g)She prepared all of the meals that they ate at home. She had learnt to cook from her mother and cooked meals in the same style as her mother. The meals she prepared for her husband were typically as follows:
· Breakfast: Not always a cooked breakfast but usually two slices of toast with jam.
· Lunch: Cold meat and salad (mainly tomato). Her husband did not really like salads.
· Dinner: Usually a cooked meal, sometimes rabbit, a roast of beef or lamb or pork once per week. On Sundays they had desserts.
· Mr. Wells did not eat a lot of butter.
20. Whilst there is no specific evidence about Mr. Wells’ pre-service diet, I believe that it probably contained a lot less animal fat than the then average intake of animal fat for adult males. A national survey in 1936-38 put the average animal fat intake of adult Australian males at 126gm per day. If Mr. Wells was continually “starving” during that period his intake of animal fat must have been well short of 126 gms/day.
21. According to Mrs. Wells, her husband told her that he ate a lot of bully beef during World War II. Whilst bully beef has been given a bad name by some ex-service people, and it did have some fat around it, it was actually made from lean beef. The typical pack available to Mr. Wells in Darwin would have contained 102.1gm of animal fat per day, according to Dr. English, nutritionist. His ration pack would have contained 107.7gm/day of animal fat, while he was stationed in southern Australia.
22. Mr. Wells’ post war diet was not particularly rich in animal fat. It seems to have been a fairly average Australian diet for the period under review. There is no evidence that he preferred a diet rich in animal fat.
23. The records show Mr Wells’ weight at various times as follows:
25.5.42 on enlistment 122 lb (55kgms), 5’6” (168cm)
27.8.46 on discharge 126 lb (57kgms)
April 1950 137lb (62 kgm)
December 1973 67 kgms
July 1986 64 kgm
24. Mrs. Wells filled in two dietary questionnaires for analysis by the dieticians who prepared reports for this type of case. Dr. English reported that if Mrs. Wells’ answers about Mr. Wells’ post service diet were correct, Mr. Wells would have had an animal fat intake of 72.3gm/day on the answers to the first questionnaire, and an animal fat intake of 157 gm/day on the answers to the second questionnaire.
25. There is no evidence which would allow the Tribunal to make a reasonably accurate estimate of Mr. Wells’ intake of animal fat on a daily basis prior to his service. His intake of animal fat was probably lower than the average (126 gm/day) but whether it was more or less than 100gm/day is impossible to say.
26. During his WWII service Mr. Wells’ obviously ate a lot of bully beef. His intake of animal fat would have been about 102 to 108 gms/day, depending on where he was stationed. However, there is no evidence that he enjoyed bully beef to such an extent that he developed a preference for fatty food.
27. Mr. Wells’ post war diet was really quite unremarkable. He ate what his wife put in front of him. She cooked much the same type of meals as her mother had done before her. He does not appear to have had any preference for fatty food.
28. The material placed before the Tribunal does not show that Mr. Wells developed a preference for a diet high in animal fat, and certainly does not show that there was any connection between the food he ate after his World War II service and the circumstances of his eligible service.
29. The whole of the material does not raise a hypothesis that Mr. Wells increased his post war intake of animal fat by any significant amount, for any significant period, over his pre-war diet, for any reasons related to his service.
30. No hypothesis is raised which links the death of Mr. Wells with the particular circumstances of his eligible service.
31.The Tribunal affirms the decision to reject the claim for widows pension.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
R. Link, AssociateDate/s of Hearing 14,21.3.05; 8.4.05; 10,11,12.5.05;
20,22.6.05; 30.9.05Date of Decision 23 December 2005
Counsel for the Applicant Mr. D. O’Gorman
Solicitor for the Applicant Gilshenan and Luton
Counsel for the Respondent Ms. E. Ford
Solicitor for the Respondent Mr. S. Francis
0
0
0